Jaferi, R (on the application of) v Secretary of State for the Home Department

Permission to seek judicial review may be granted where individual maladministration arguably delays determination of an immigration application until after a material policy change, causing the claimant to lose the opportunity for more favourable treatment under the earlier policy.

General departmental maladministration is insufficient. The claimant must identify conduct specific to the case and show an arguable causal connection with the alleged prejudice. A public authority may also be held to the treatment expressly stated in its correspondence, absent authority or exceptional circumstances justifying departure. The grant of permission on such grounds is fact-sensitive and does not establish a general entitlement to indefinite leave to remain for all similarly situated applicants.

The claimant, an Afghan national who arrived in the United Kingdom as an unaccompanied child, challenged the refusal to grant indefinite leave to remain. His application for further discretionary leave had remained outstanding while the Home Office repeatedly requested photographs and subsequently decided the application after a change in the policy applied to legacy cases.

Permission was initially refused on 4 September 2012. The renewed application was adjourned pending decisions in similar cases, including R ota Geraldo v SSHD [2013] EWHC 2763 (Admin). The central issue was whether the repeated requests and resulting delay arguably amounted to individual maladministration causing the claimant to lose the prospect of a decision under the earlier policy.

1. Permission granted. The claimant established an arguable challenge to the particular refusal of indefinite leave to remain.
2. The court accepted that R ota Geraldo v SSHD [2013] EWHC 2763 (Admin) required more than general departmental maladministration. The alleged maladministration had to be specific to the claimant and causative of an injustice of a kind warranting judicial intervention.
3. The May 2010 letter stated unambiguously that the claimant’s case would be treated as a legacy case and set out the applicable criteria. In the absence of authority or exceptional circumstances, the public authority was arguably bound by that representation.
4. The repeated requests for photographs over a 14-month period were arguably maladministration. It was unnecessary to prove that the original photographs had been lost: an unnecessary duplicate request causing delay could itself constitute maladministration.
5. The relevant prejudice was the loss of an opportunity for a decision under the former policy before July 2011. Applying the reasoning in R ota Geraldo v SSHD [2013] EWHC 2763 (Admin), it was arguable that a legacy decision not to remove the claimant before the policy change would probably have resulted in indefinite leave to remain, absent a countervailing factor.
6. The case was expressly confined to its individual facts. It was not a generic challenge based on the making of a pre-2011 application, treatment as a legacy case, or receipt of less than indefinite leave to remain. The parties were directed to consider consequential directions for the speedy final determination of the claim.

Prior permission to bring judicial review proceedings was refused on 4 September 2012. This renewed permission application was subsequently adjourned pending decisions in similar cases. The present court granted permission on the specific maladministration ground.